- Notable Unreported Decision
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
Butler v Attorney-General for the State of Queensland  QSC 103
JOSEPH WILLIAM BUTLER
ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND
SC No 2772 of 2018
DELIVERED EX TEMPORE ON:
9 May 2018
9 May 2018
The order of the Court is that the application is dismissed.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the applicant was detained at Her Majesty’s pleasure pursuant to s 18 of the Criminal Law Amendment Act 1945 (Qld) – where the applicant applied to be released from indefinite detention – where the respondent determined the applicant was not to be released – whether the decision was so unreasonable that no reasonable person could have so exercised the power
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the applicant was detained at Her Majesty’s pleasure pursuant to s 18 of the Criminal Law Amendment Act 1945 (Qld) – where the applicant applied to be released from indefinite detention – where the respondent determined the applicant was not to be released – whether the respondent failed to take into account relevant considerations
Criminal Law Amendment Act 1945 (Qld) s 18(5)(b)
Judicial Review Act 1991 (Qld) s 20(2)(e)
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, applied
Pollentine v Bleijie (2014) 253 CLR 629, followed
WB Rural Pty Limited v Commissioner of State Revenue  QSC 141, applied
D P O’Gorman SC with S T Lane for the applicant
S A McLeod with G Del Villar for the respondent
Prisoner’s Legal Service for the applicant
Crown Law for the respondent
- As will appear, the circumstances of the present applicant are such that a determination on his application should be made as soon as possible. Accordingly I mean no disrespect to the arguments put before me that I have determined to proceed to express my conclusion ex tempore.
- The applicant was convicted in the Magistrates Court of a number of sexual offences against children in 1970 and sentenced to various sentences of imprisonment, the longest of which was 12 months. Thereafter, still in 1970, a proceeding took place before D.M Campbell J which resulted in the applicant being detained indefinitely at Her Majesty’s pleasure pursuant to s 18 of the Criminal Law Amendment Act 1945 (Qld), which I will refer to as the “CLA”. The applicant has been so detained since 1970. The jurisdiction to detain him arose consequent upon the receipt of a medical practitioner’s report that the applicant was incapable of exercising proper control over his sexual instincts.
- In order for a person in the applicant’s position to obtain release, two options are open:
- unconditional release pursuant to s 18(5)(b) of the CLA; and
- release by the parole board under the provisions of Part 3A of the CLA.
- The present application concerns the former possibility.
- Section 18(5)(b) of the CLA provides that a prisoner detained under section 18(3)(a):
- shall not be released until the Governor in Council is satisfied on the report of 2 medical practitioners that it is expedient to release the offender or prisoner.
- The considerations governing the making of such a decision are not in doubt. In Pollentine v Bleijie (2014) 253 CLR 629, the High Court, in determining that s 18 was not invalid, examined the criteria for release under the section. Critically, the court observed at  and - (original emphasis):
 It remains important, however, to emphasis two points about the statutory criterion. First, the consequences for an offender of a court making a direction for detention under s 18 are very large. Secondly, the use of the word “incapable” suggests that, absent some intervening fact or circumstance, reoffending is well-nigh inevitable.
 The Governor in Council must (s 18(5)(b)) be satisfied on the report of two medical practitioners that “it is expedient to release” the offender. The required state of satisfaction must thus draw upon the reports and, in the context of this Act, those reports must be directed to whether, at the time of the report, the detainee remains a person whose “mental condition is such that he is incapable of exercising proper control over his sexual instincts” (s 18(1)(a)). Section 18(5) makes no mention of any other source of material which may inform the formation of the required state of satisfaction.
 Because s 18(5) provides for the termination of detention, it should not be construed as conferring an unfettered discretion to grant or refuse a detainee’s release. On the contrary, by identifying the report of the medical practitioners as the foundation for the decision about what is “expedient”, the provision should be read as confining the matters which the decision maker may lawfully take into account to the matter with which those reports should deal: whether the detainee remains a person whose mental condition is such that he is incapable of exercising proper control over his sexual instincts. Whether the decision maker may be informed on that subject by reference to more than the reports provided is a question which need not be decided. But what is “expedient” turns only on whether the detainee remains incapable of exercising proper control.
- It is notable that the High Court there made clear the following points:
- Section 18(5) does not confer on the Governor in Council an unfettered discretion to grant or refuse a detainee’s release.
- The section confines the matters which the Governor in Council may lawfully take into account to the matter with which the two medical reports must deal – namely, whether the detainee remains a person whose mental condition is such that he is incapable of exercising proper control over his sexual instincts.
- What is “expedient” turns only on whether the detainee remains a person whose mental condition is such that he is incapable of exercising proper control over his sexual instincts. The concept of “incapable” is to be understood as requiring that, absent some intervening fact or circumstance, reoffending is well-nigh inevitable.
- The question whether the Governor in Council may be informed on that subject by reference to more than the two reports concerned was left open. Notably, however, the Governor in Council was not bound to be informed on that subject by anything other than the two reports dealing with the matter that I have referred.
- Two other points should be noted about the decision.
- First, at , the High Court stated:
As has been explained, whether it is expedient to release must depend upon the assessment that is made of the risk of reoffending and the nature of the offences that the detainee might commit if released from detention without conditions or supervision.
- That passage does not alter the statement at , that the matters to be taken into account are confined to whether the detainee remains a person whose mental condition is such that he is incapable of exercising proper control over his sexual instincts. The statement is to be understood in the context of the earlier explanation that being “incapable” in the respect concerned suggests that the person’s mental state is that, absent some intervening fact or circumstance, reoffending is well-nigh inevitable. That is why, at , the High Court refers to risk of reoffending.
- Second, the High Court also made clear s 18(5) does not allow for the imposition of conditions on the release of a detainee by the Governor in Council. That power only exists with the parole board if a detainee seeks release by the other route. It follows that the consideration whether the detainee remains a person whose mental condition is such that he is incapable of exercising proper control over his sexual instincts (and, ex hypothesi, is a person where reoffending is well-nigh inevitable) must be examined by reference to the circumstance of being unconditionally released.
- On 14 September 2016, the applicant applied to be released pursuant to s 18(5)(b) of the CLA. On 25 January 2017, the Governor in Council determined that it was not expedient to release the applicant from indefinite detention, however, the present application does not involve that decision.
- On 3 April 2017, the applicant, via his representatives, was advised by the respondent that due to an administrative oversight, the Governor in Council did not have all relevant material before it when making the decision of 25 January 2017. The respondent proposed that the decision of 25 January 2017 be rescinded and the application for release be considered afresh. That is what happened.
- On 1 February 2018, the Governor in Council rescinded the earlier decision and determined that the applicant was not to be released. It is that decision, namely, the decision of 1 February 2018, which is the subject of the proceeding before this court.
- A statement of reasons was subsequently provided to the applicant on 25 February 2018. The reasons were structured in the following manner:
- An introductory section identified the issue, identified the governing legislation, and explained the reason for remaking the decision.
- Next was a section which stated the decision recorded above.
- Then there was a section which identified the material which the Governor in Council had before it. That material identified that the Governor in Council had the report of two medical practitioners which addressed the issue required to be addressed by s 18(5).
- There followed a section which identified the findings on material questions of fact.
- The reasons concluded with an articulation of the explanation for the decision.
- It is appropriate to quote the last two sections in their entirety:
Findings on material questions of fact
The Governor in Council made the following findings of fact:
- Mr Butler has been detained under the CLAA since 1970. He has resided at the Park Centre for Mental Health at Wolston Park since 1982. The Park is a prescribed institution for the purposes of s 18 of the CLAA.
- Mr Butler is now 79 years old, suffering from numerous medical conditions including heart problems, hypertension, type II diabetes and mild congestive cardiac failure, bladder cancer, extensive solar skin damage, osteoarthritis and cataracts and declining kidney function. These medical conditions require a significant amount of medication and medical attention.
- Recently Mr Butler has been treated for moderate sensori-neural deafness with the use of bilateral hearing aids.
- Mr Butler is diagnosed as suffering from a mild mental retardation (F70.0), and Paedophilia (F65.4).
- Mr Butler is becoming increasingly infirm.
- Mr Butler does not suffer from a mental illness.
- Mr Butler has demonstrated a capacity to control his sexual impulses in the context of residing in an institutional environment, living according to communicated behavioural expectations and being prescribed anti-libidinal medication.
- Mr Butler has undertaken the following sexual offenders or other specialised treatment programs:
- 1986 – Behavioural Therapy
- 1987 – Cognitive therapy
- 1999 – Sexual Education (Family Planning Association)
- 2000-2001 – A six module sex education program covering:
-Public and private places
-Saying yes to sex
-Saying no to sex
-The sexual person
- Mr Butler has undergone a range of supportive and skill development programs to improve his skills of everyday living.
- There is no evidence that Mr Butler has sexually reoffended against a child or that he has sexually offended against an adult in his years of detention.
- Dr Aboud strongly suggests that Mr Butler not be permitted to have unsupervised access to children.
- Mr Butler has been assessed by an Aged Care Assessment Team and would be eligible for Permanent Resident aged care.
- The Park does not have specialised resources to maintain the aged care support that Mr Butler requires into the future.
Reasons for the decision
The Governor in Council made the decision for the following reasons:
- Despite the conclusions of Dr Aboud and Dr Stedman that Mr Butler has demonstrated that he is capable of controlling his sexual instructs (sic) in the context of residing in an institutional environment, both doctors recognise that the release of Mr Butler into the community would require ongoing support and supervision (Stedman 11 August 2016, pp 4 and 5; Aboud 29 May 2015, p 3 and 2 August 2016 paras 1, 2 and 5).
- Dr Aboud, in his supplementary report states, at para 2, that “I am unclear whether he would be capable of exercising proper control over sexual instincts should he find himself without a comparable level of support and supervision to that which currently exists for him at the Park Centre for Mental Health.”
- Release by the Parole Board, under the provisions of part 3A of the CLAA, enables conditions to be applied, including additional conditions which may require the detainee to submit to medical, psychiatric or psychological treatment. There is no power for the Governor in Council to apply conditions to release of a detainee under s 18(5) of the CLAA (Pollentine v Bleijie (2014) 253 CLR 629, 648 ).
- Release of Mr Butler under s 18(5) of the CLAA would not permit formal supervision and monitoring of Mr Butler in the community, and, in addition, there is no power after release under s 18(5) for the released person to be returned to detention if the release proves to be placing others at risk. Unlike release under part 3A, where a detainee could be returned to custody upon breach of a condition of release, the only way of returning the detainee to custody after release under s 18(5) would be by way of prosecution and conviction after a further offence.
- While it is suggested that there are groups and individuals in the community willing to provide support to Mr Butler in the community if he is unconditionally released there is nothing compelling him to avail himself of those support measures.
- PLS has submission that the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 is sufficient to provide an effective supervisory regime if Mr Butler is released unconditionally into the community. However, the reporting requirements under this scheme do not provide the supervision and support, or conditions, appropriate for release of Mr Butler from detention.
- Because of its obvious significance to the reasoning of the Governor in Council, it is appropriate to quote the relevant part of Dr Aboud’s supplementary report:
1. Does Mr Butler represent an unacceptable risk to the safety of others?
In my view he would not represent an unacceptable risk to the safety of others, if he is provided in the future with a comparable level of support and supervision to that which currently exists for him at The Park Centre for Mental Health. I believe that it may be possible to ensure an appropriate level of support and supervision within the construct of a supported accommodation or aged care facility. It would also readily be the case that such support and supervision could be provided by the Extended Forensic Treatment & Rehabilitation Unit that exists at The Park Centre for Mental Health.
2. Is Mr Butler capable of exercising proper control over sexual instincts?
He has resided for many years in the protected environment of a psychiatric hospital, and has been provided with significant support and management of psychosocial stressors throughout this time. During this time he has not re-offended sexually. However, there has been concern that he has continued to harbour interest in children, as evidenced by his behaviour when previously an inpatient of the Extended Forensic Treatment & Rehabilitation Unit (as documented in my original report). I am unclear whether he would be capable of exercising proper control over sexual instincts should he find himself without a comparable level of support and supervision to that which currently exists for him at The Park Centre for Mental Health.
5. Are there any other issues which you believe relevant in regard to Mr Butler’s release?
I strongly suggest that he not be permitted to have unsupervised access to children. I suggest that those responsible for providing him with support into the future be made aware of his offence history and risk profile.
- The applicant now brings an application for a statutory order of review of the decision of 1 February 2018, pursuant to s 20(2)(e) of the Judicial Review Act 1991 (Qld).
- The applicant challenges the decision of the Governor in Council on the ground that it constitutes an improper exercise of power in that:
- the exercise of power was so unreasonable that no reasonable person could have exercised the power in that way; and
- the respondent failed to take four relevant considerations into account, namely –
- whether it was possible for the applicant to be returned to detention if his release subsequently proved to be placing others at risk;
- whether the applicant’s release plan provided a comparable level of support and supervision to that which existed for him at the Park Centre for Mental Health;
- whether the applicant was able to live in the community without the arranged support measures, and the impact of his health on his ability to live independently in the community; and
- the extensive periods of time he had been free in the community without incident as a result of unrestricted leave.
- I will deal with the grounds for challenge to the decision under separate headings.
- I summarised the relevant principles relating to the unreasonableness ground of judicial review in WB Rural Pty Limited v Commissioner of State Revenue  QSC 141 at - as follows:
 In Francis v Crime and Corruption Commission  QCA 218 Fraser JA observed (at , Morrison JA and Mullins J agreeing) in relation to the unreasonableness ground of judicial review that:
- it involved a stringent test, and was rarely established;
- it did not sanction a review on the merits;
- it was not made out merely if the court disagrees with an evaluative decision or with the weight attributed to a factor taken into account in the decision;
- in Flegg v Crime and Misconduct Commission  QCA 42 at  and :
- the President had expressed the test, with reference to Minister for Immigration & Citizenship v Li, as being “whether the … decision was so unreasonable that it lacked an evident and intelligible justification when all relevant matters were considered”; and
- Gotterson JA (Margaret Wilson J agreeing) noted that the Wednesbury principles did not allow a challenge to a decision “on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which the [appellate tribunal] disagrees”.
- the court’s task was to examine the reasoning of the impugned decision to determine whether it was a decision that could be justified even though “… reasonable minds could reasonably differ” or whether the decision was so unreasonable that it lacked an evident and intelligible justification.
 And, in Minister for Immigration & Border Protection v SZVFW  FCAFC 33, Griffiths, Kerr and Farrell JJ observed at :
The following general principles may be extracted from the three leading authorities [of Li, Minister for Immigration & Border Protection v Singh  FCAFC 1 and Minister for Immigration & Border Protection v Stretton  FCAFC 11] (further general guidance is provided by the Full Court’s decision in Minister for Immigration & Border Protection v Eden  FCAFC 28):
• there is a legal presumption that a statutory discretionary power must be exercised reasonably in the legal sense of that word (Li at  per Hayne, Kiefel and Bell JJ; Singh at  per Allsop CJ, Robertson and Mortimer JJ; Stretton at  per Allsop CJ and at  per Griffiths J);
• nevertheless, there is an area within which a decision-maker has a genuinely free discretion, which area is bounded by the standard of legal reasonableness (Li at ; Stretton at  per Griffiths J);
• the standard of legal reasonableness does not involve a court substituting its view as to how a discretion should be exercised for that of a decision-maker (Li at ; Stretton at  per Allsop CJ) and  per Griffiths J);
• the legal standard of reasonableness is not limited to what is in effect an irrational, if not bizarre, decision and an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified (Li at );
• in determining whether in a particular case a statutory discretion has been exercised unreasonably in the legal sense, close attention must be given to the scope and purpose of the statutory provision which confers the discretion and other related provisions (Li at ; Stretton at  and  per Griffiths J);
• legal unreasonableness “is invariably fact dependent” and requires a careful evaluation of the evidence. The outcome of any particular case raising unreasonableness will depend upon an application of the relevant principles to the relevant circumstances, rather than by way of an analysis of factual similarities or differences between individual cases (Singh at ; Stretton at  per Allsop CJ and at  per Griffiths J);
• the concept of legal unreasonableness can be “outcome focused”, such as where there is no evident and intelligible justification for a decision or, alternatively, it can reflect the characterisation of an underlying jurisdictional error (Singh at ; Stretton at – per Allsop CJ);
• where reasons are provided, they will be the focal point for an assessment as to whether the decision is unreasonable in the legal sense and it would be a rare case to find that the exercise of a discretionary power is legally unreasonable where the reasons demonstrated a justification (Singh at –).
- No submission was advanced to me as to the inadequacy of the principles summarised by me in those passages.
- In my view, the statement of reasons by the Governor in Council plainly discloses an “evident and intelligible justification” for the decision. The Governor in Council acknowledged the effect of the two reports on the critical question was relatively clear, that in the institutional context, the applicant’s mental state would justify his release. And then the Governor in Council correctly acknowledged that both medical reports emphasised the need for the applicant to have ongoing support and supervision. The Governor in Council specifically referenced the concerns addressed by Dr Aboud should the applicant “find himself without a comparable level of support and supervision to that which currently exists for him at The Park Centre for Mental Health”.
- It was open to the Governor in Council to conclude from the evidence before it that the applicant’s capability of exercising proper control over his sexual instincts was conditional upon his continuing to be provided with a comparable level of support and supervision to that which currently existed for him at the Park Centre for Mental Health. I think that is what the Governor in Council did.
- The reasons at  and , then, demonstrate that the Governor in Council correctly noted that there was no capacity to ensure that condition was met. Reasons at  noted correctly that the willingness of groups and individuals in the community to provide support on unconditional release still does not ensure that the condition is met because there is nothing compelling the applicant to avail himself of that support. Reasons at  was a comparatively brief but, in context, understandable dismissal of the notion that such automatic operation of some degree of supervision as might happen consequent upon the operation of the Child Protection (Offender Reporting and Offender Prohibition) Act 2004 (Qld) could not be regarded as ensuring the condition was met.
- In my view, it is evident that the Governor in Council was not satisfied it was expedient to order the unconditional release because they were not persuaded that – if the applicant was released without any way to ensure the condition concerning his support and supervision was met – the applicant no longer remained a person who was incapable of controlling his sexual instincts. That conclusion is an evident and intelligible justification for the decision.
- There is no substance to the applicant’s contention that the decision was so unreasonable that no reasonable person could have so exercised the power. The contention must fail.
- For completeness, I note that the applicant sought to support his contention on this part of the case by, in the document I have marked as MFI 2, identifying detailed reference to the evidence which supported the decision which the applicant sought to obtain. I have read that document but do not find anything in it which negates the reasoning that I have expressed on this ground.
Failure to consider relevant considerations
- Under this ground of review, the applicant must show that the Governor in Council was bound to take into account the alleged relevant considerations that they identified. The relevant principles were set out by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40 (original emphasis):
- The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision…
- What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, then it must be determined by implication from the subject matter, scope and purpose of the Act…
- The passages from Pollentine v Bleijie which I quoted earlier in these reasons, provide very clear guidance as to the considerations which the Governor in Council is bound to take into account in reaching the determination whether it is expedient to release an applicant unconditionally under s 18(5)(b) of the CLA.
- From these passages, it is clear that the only matter the Governor in Council was bound to consider, and would fall into error by failing to consider, was whether the applicant remained a person whose mental condition was such that he was incapable of exercising proper control over his sexual instincts and, accordingly, a person in which there was a high degree of risk of reoffending if he was released unconditionally.
- It was not submitted by the applicant that the respondent failed to take into account this consideration. In any event, it is clear from the statement of reasons, understood in the way I have explained, that the Governor in Council did take this matter into account.
- The applicant relies on four alleged relevant considerations which the applicant says the Governor in Council failed to take into account. However, in my view, the applicant has not undergone the discipline of demonstrating that each consideration said to be relevant and not taken into account was something which the legislation in question, and on its proper construction, mandated that the decision-maker must take into account.
- The applicant’s argument to the contrary seemed to be that, by reference to a number of cases concerning the Queensland Parole Board, I should conclude that the considerations which the applicant identified as relevant considerations had become considerations which the Governor in Council was bound to take into account because they were treated as essential premises of the decision, and as the premises had been challenged by the applicant, it became necessary for the decision-maker to take into account the correctness of the challenge as to the premise being established.
- That argument fails for two reasons. First, the analogy with the parole regime under the Corrective Services Act 2006 (Qld) is not apposite. The discretion exercised by the parole board is broader and exercised in a different way than the discretion exercised by the Governor in Council. The latter discretion is highly regulated in the way explained by the High Court in Pollentine v Bleijie. Second, the considerations were not treated by the Governor in Council as essential premises of the decision, in any event. The decision proceeded in the way that I have explained.
- It follows the application should be dismissed. I so order.
 McGrane v Queensland State Parole Board  QSC 209 at - and  per McMurdo J; Cuzack v Queensland Parole Board  QSC 264 at , - and - per Boddice J; Queensland Parole Board v Moore  QCA 280 at , ,  and - per Holmes JA (with whom McMurdo P and Mullins J agreed); Abbott v Queensland Parole Board  QSC 22 at - per Dalton J; Maycock v Queensland Parole Board  1 Qd R 408 at  and  per Jackson J; and Pangilinan v Queensland Parole Board  QSC 133 at  et seq per Jackson J.
- Published Case Name:
Butler v Attorney-General for the State of Queensland
- Shortened Case Name:
Butler v Attorney-General
 QSC 103
09 May 2018
- White Star Case:
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 103||09 May 2018||Application for statutory order of review dismissed: Bond J.|
|Appeal Determined (QCA)|| QCA 243||28 Sep 2018||Appeal allowed; orders made 9 May 2018 set aside; order of Governor-in-Council dated 1 February 2018 set aside; matter remitted to Governor-in-Council to be determined according to law: Sofronoff P and Morrison JA and Jackson J.|